JORDAN, JONES v. Balfour Beatty Const., No. A00A1043

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtJOHNSON, Chief.
Citation539 S.E.2d 828,246 Ga. App. 93
Decision Date22 September 2000
Docket Number No. A00A1046., No. A00A1043
PartiesJORDAN, JONES & GOULDING, INC. v. BALFOUR BEATTY CONSTRUCTION, INC. Williams-Russell & Johnson, Inc. v. Balfour Beatty Construction, Inc.

539 S.E.2d 828
246 Ga.
App. 93

JORDAN, JONES & GOULDING, INC.
v.
BALFOUR BEATTY CONSTRUCTION, INC.
Williams-Russell & Johnson, Inc.
v.
Balfour Beatty Construction, Inc

Nos. A00A1043, A00A1046.

Court of Appeals of Georgia.

September 22, 2000.


539 S.E.2d 829
Smith & Fleming, Kent P. Smith, George D. Wenick, Peter M. Crofton, Atlanta, for appellant (case no. A00A1043)

King & Croft, Terrence L. Croft, Thomas A. Croft, Atlanta, for appellant (case no. A00A1046).

Moye, O'Brien, O'Rourke, Hogan & Pickert, Nathan E. Minear, Atlanta, for appellee.

JOHNSON, Chief Judge.

The architectural and engineering firms of Jordan, Jones & Goulding, Inc. ("Jordan Jones") and Williams-Russell & Johnson, Inc. ("Williams-Russell") entered into a venture with Balfour Beatty Construction, Inc. to design and construct improvements to a wastewater treatment plant. After encountering problems in construction, Balfour Beatty sued Jordan Jones and Williams-Russell (collectively "the engineers"), alleging that they failed to exercise reasonable care or competence in designing the improvements. Although the action against the engineers was one of professional malpractice, Balfour Beatty failed to file an expert's affidavit with the complaint. Based on that failure, Jordan Jones moved for summary judgment and to dismiss the complaint. Williams-Russell moved to dismiss the complaint on the same grounds. The trial court dismissed the complaint against the engineers without prejudice.1

The main issue in these appeals is whether the trial court should have dismissed the complaint with prejudice rather than without prejudice. In Case No. A00A1043, Jordan Jones appeals from the trial court's order of dismissal. Williams-Russell appeals from the same order in Case No. A00A1046. Because the appeals raise the same arguments, they will be considered together.

1. A plaintiff who brings an action alleging professional malpractice must file with the complaint an expert's affidavit.2 The affidavit must set forth at least one negligent act or omission and the factual basis for the claim.3 If the required affidavit is not filed with the complaint, the complaint is subject to dismissal for failure to state a claim.4 A dismissal for failure to state a claim is a dismissal on the merits and is with prejudice. 5[246 Ga. App. 94]

Balfour Beatty concedes that its complaint against the engineers comes within OCGA § 9-11-9.1(a), that it was therefore required to file an expert's affidavit with its complaint, and that it failed to do so. This Court has held that the proper consequence in such a case is dismissal of the complaint with prejudice.6

Balfour Beatty argues that a 1997 amendment to OCGA § 9-11-9.1 changes this well-settled rule. Balfour Beatty points out that the former subsection (e) of OCGA § 9-11-9.1, which provided that if a plaintiff fails to file an affidavit, the complaint is subject to dismissal for failure to state a claim and cannot be cured by amendment, was deleted in its entirety in 1997. Because the statute as amended does not include the language providing that the complaint is subject to dismissal for failure to state a claim, [246 Ga. App. 95] Balfour Beatty urges that dismissal is no longer "for failure to state a claim" and therefore is without prejudice. We disagree.

We note that the cases cited above for the proposition that dismissal is to be with prejudice were decided after the 1997 amendment

539 S.E.2d 830
was enacted. Thus, the amendment has not resulted in a change in our decisions regarding whether a dismissal under the statute is with prejudice

In addition, the construction of a statute must square with common sense and sound reasoning.7 And, the language in one part of the statute must be construed in light of the legislative intent as found in the statute as a whole.8

Only two subsections of amended OCGA § 9-11-9.1 mention dismissals, and they both provide that dismissal is for failure to state a claim. Subsection (b) provides that the contemporaneous filing requirement does not apply where the complaint is filed just before the statute of limitation expires and an affidavit could not be prepared; in those cases, the plaintiff has additional time in which to supplement the pleadings, and if he fails to do so within that period or by an extended deadline, and the defendant moves to dismiss based on that failure, the complaint is subject to dismissal for failure to state a claim. Subsection (d) provides that where the affidavit is defective, and the defendant moves to dismiss the complaint on that ground, the complaint is subject to dismissal for failure to state a claim, except that the defect may be cured by amendment within 30 days of service of the motion.

In construing the statute as amended, it would be unreasonable to hold that the legislature intended for complaints to be dismissed with prejudice when a...

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13 practice notes
  • Sood v. Smeigh, A02A2471.
    • United States
    • United States Court of Appeals (Georgia)
    • February 6, 2003
    ...days, because OCGA § 9-11-9.1(d) mandates dismissal absent a cure of the defect. Jordan, Jones & Goulding, Inc. v. Balfour Beatty Constr. 246 Ga.App. 93, 94-95(1), 539 S.E.2d 828 (2000) (failure to file an affidavit with the complaint when not statutorily excused requires a dismissal with p......
  • Collins v. Athens Orthopedic Clinic, A18A0296
    • United States
    • United States Court of Appeals (Georgia)
    • June 27, 2018
    ...while dismissals under OCGA § 9-11-12 (b) (6) are on the merits and with prejudice. Jordan, Jones & Goulding v. Balfour Beatty Constr ., 246 Ga. App. 93, 93 (1), 539 S.E.2d 828 (2000). See also OCGA § 9-11-41 (b).2 I would not indulge these thieves by using the comically grandiose name they......
  • Collins v. Athens Orthopedic Clinic, A18A0296
    • United States
    • United States Court of Appeals (Georgia)
    • June 27, 2018
    ...while dismissals under OCGA § 9-11-12 (b) (6) are on the merits and with prejudice. Jordan, Jones & Goulding v. Balfour Beatty Constr ., 246 Ga. App. 93, 93 (1), 539 S.E.2d 828 (2000). See also OCGA § 9-11-41 (b).2 I would not indulge these thieves by using the comically grandiose name they......
  • Brown v. Estate of Brown, A00A1213.
    • United States
    • United States Court of Appeals (Georgia)
    • September 22, 2000
    ...part of her year's support. 13[246 Ga. App. 335] The other points raised in the motion are already addressed in the text of our opinion. 539 S.E.2d 828 The estate's motion for reconsideration is Motion for reconsideration denied. -------- Notes: 1. Pursuant to Ga. L.1996, p. 504, § 10, a ne......
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13 cases
  • Sood v. Smeigh, No. A02A2471.
    • United States
    • United States Court of Appeals (Georgia)
    • February 6, 2003
    ...days, because OCGA § 9-11-9.1(d) mandates dismissal absent a cure of the defect. Jordan, Jones & Goulding, Inc. v. Balfour Beatty Constr. 246 Ga.App. 93, 94-95(1), 539 S.E.2d 828 (2000) (failure to file an affidavit with the complaint when not statutorily excused requires a dismissal with p......
  • Collins v. Athens Orthopedic Clinic, A18A0296
    • United States
    • United States Court of Appeals (Georgia)
    • June 27, 2018
    ...while dismissals under OCGA § 9-11-12 (b) (6) are on the merits and with prejudice. Jordan, Jones & Goulding v. Balfour Beatty Constr ., 246 Ga. App. 93, 93 (1), 539 S.E.2d 828 (2000). See also OCGA § 9-11-41 (b).2 I would not indulge these thieves by using the comically grandiose name they......
  • Collins v. Athens Orthopedic Clinic, A18A0296
    • United States
    • United States Court of Appeals (Georgia)
    • June 27, 2018
    ...while dismissals under OCGA § 9-11-12 (b) (6) are on the merits and with prejudice. Jordan, Jones & Goulding v. Balfour Beatty Constr ., 246 Ga. App. 93, 93 (1), 539 S.E.2d 828 (2000). See also OCGA § 9-11-41 (b).2 I would not indulge these thieves by using the comically grandiose name they......
  • Brown v. Estate of Brown, No. A00A1213.
    • United States
    • United States Court of Appeals (Georgia)
    • September 22, 2000
    ...part of her year's support. 13[246 Ga. App. 335] The other points raised in the motion are already addressed in the text of our opinion. 539 S.E.2d 828 The estate's motion for reconsideration is Motion for reconsideration denied. -------- Notes: 1. Pursuant to Ga. L.1996, p. 504, § 10, a ne......
  • Request a trial to view additional results

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